


A Mini History Lesson (9)

by pallasite



Series: Behind the Gloves [122]
Category: Babylon 5, Babylon 5 & Related Fandoms
Genre: Backstory, Bigotry & Prejudice, Canon Compliant, Constitutional law, Crawford-Tokash Act, Discrimination, Essays, Fix-It, Gen, Law, People are not devices, Psi Corps, Telepath Law (Babylon 5), Worldbuilding, double standards, telepaths
Language: English
Status: Completed
Published: 2018-05-23
Updated: 2018-05-23
Packaged: 2019-05-09 17:45:34
Rating: General Audiences
Warnings: No Archive Warnings Apply
Chapters: 1
Words: 938
Publisher: archiveofourown.org
Story URL: https://archiveofourown.org/works/14720727
Author URL: https://archiveofourown.org/users/pallasite/pseuds/pallasite
Summary: "Give me the outcome you want, and we'll find a way to make it sound good legally."A recap of some of the law stuff, before I move on to even more law stuff.Also known as, "why so-called 'judicial activism' can actually be really dangerous."The prologue ofBehind the Glovesishere- please read!





	A Mini History Lesson (9)

**Author's Note:**

> What is this series? Where are the acknowledgements, table of contents and universe timelines? See [here](http://archiveofourown.org/works/10184558/chapters/22620590).
> 
> If you like _Behind the Gloves_ and would like to send me an email, I can be reached at counterintuitive at protonmail dot com. Do you have questions? Would you like to tell me what you like about this project? Email me!
> 
> I also have an [ask blog](https://behind-the-gloves.tumblr.com/), a [writing blog](https://www.tumblr.com/blog/pallasite-writes), and a "P3 life" Tumblr [here](https://www.tumblr.com/blog/p3-life) with funny anecdotes. :)

Last year, I wrote an essay on "[telepath tort law](https://archiveofourown.org/works/10478532)." To summarize that post:

  * In tort law as it has existed forever and ever, in order for a plaintiff to succeed in court, he or she must show damages. _Actual damages._ If the plaintiff can't show actual damages, the most they can recover is a "nominal" award, because they didn't actually suffer any real harm. I can't sue someone for some hypothetical harm that I may or may not have sustained, that cannot be determined one way or the other. I cannot sue someone because they were negligent, if their negligence resulted in no demonstrable harm to anyone.
  * See [here](http://linkilaw.com/blog/elements-of-tort-law): "without the damage or injury sustained then there is no basis for a tort lawsuit."
  * "The defendant may or may not have exposed me to the presence of a person who may or may not have harmed me, and I suffered extreme emotional distress because of this" would, in any rational world, fail to form the basis of a successful lawsuit, because this is absurd.



For some reason, they didn't just make it illegal for companies to hire "rogue" telepaths - they rewrote hundreds of years of tort law instead.

The relevant laws here, as mentioned in the first essay, are "mental distress" and "invasion of privacy."

(Since these are the names of real torts, hey, we can disguise the fact what we did to them changes things entirely!)

First, it's almost impossible to collect in a "mental distress" ("intentional infliction of emotional distress") case in the absence of concurrent physical injury, because otherwise it would be SUPER EASY TO FAKE. There have been a few exceptions, but those were clear and extreme (such as watching one's child violently die because of the defendant's negligence).

"BUT I MAY HAVE BEEN IN THE SAME ROOM AS AN "UNMARKED" TELEPATH AND I'M HAVING A NERVOUS BREAKDOWN!" should, in any rational world, fail in court - whether it's "telepaths" or someone from any other group you happen not to like. If you can't show actual damages, you're out of luck - except here.

Likewise, "invasion of privacy" doesn't mean what they say it does. Outside of weird B5 tort law involving telepaths, "invasion of privacy" applies to real, tangible, visible harms, usually the _publication_ of private facts - and only when those facts aren't of legitimate public concern.

 **Publication - not just knowing something.** The publication is what causes the actual harm, and hence, leads to the tort.

"THIS PERSON SAT NEXT TO ME IN YOUR PLACE OF BUSINESS, AND THEY MAY HAVE NOTICED SOMETHING ABOUT ME! I'M GOING TO SUE YOU FOR EXPOSING ME TO THEM!" is not an actionable tort, and should, in any rational world, fail, because it's _bananas_ \- but they re-wrote tort law, and they reclassified telepaths as legally  _listening devices_ rather than people, and telepathy as parallel to  _electronic surveillance_ rather than a human  _sense_ , so it flies.

They came up with the result they wanted _first_ , and "pretzelized" the law to get themselves there.

\-----

In 1967, Justice Black [dissented to the majority opinion](https://archiveofourown.org/works/10467444) in _Katz_ , the crucial case that held that government wire-tapping constituted a "search" or "seizure."

He repeated his earlier writing, in the _Griswald_ case:

          _"The Court talks about a constitutional 'right of privacy' as though there is some constitutional provision or provisions forbidding any law ever to be passed which might abridge the 'privacy' of individuals. But there is not."_

The Court made it up, to "bring [the Constitution] into harmony with the times."

The _Katz_ case overruled decades of good law, and changed the meaning of a "search" and "seizure" to include material that was intangible, such as conversations, because the Supreme Court wanted to "keep the Constitution up to date," even though such a new meaning of "search" and "seizure" couldn't have been the intent of the Framers.

Then it gets worse.

If intangibles such as one's voice can be "seized," then maybe intangibles such as one's thoughts, feelings and knowledge can also be "seized" by the government (or by private actors), and need to be legally protected somehow. And how? By expanding government power to such a degree that we can literally criminalize people's _senses_ _!_

And how do we criminalize people's senses?

Well, we can legally reclassify telepaths from human beings to "listening devices"! Then if telepaths are all "wire-tappers," we can model this new scheme after  _Katz_ and subsequent legal developments that protect people's _electronic_ privacy, and give the Committee on Technology and Privacy jurisdiction over "regulating" telepaths' lives and restricting their freedoms.

...Er, I mean, give the committee the power to protect the rights of normals! (Those new "rights" we literally just made up, but shhhh.)

I mean, we need to keep the Constitution "in harmony with the times," don't we?

(I know many of my readers will hate to hear this, but the very same processes that allowed the courts to invent a "right to privacy" and define/redefine who is (and is not) a "person" allowed for both _Roe vs. Wade_ and the horror show above. How much power do we want to give our courts to create new rights and to redefine the meaning of words? Always? Never? Just when we like the result?

And how might we protect the "little guy" from government surveillance of his/her electronic communications without falling to the trap they fell into, in that world? Hint: Telepathy isn't "wire-tapping" and the government should never criminalize people's senses, _ever_. I shouldn't even have to say it, but "in some cases, this is not only reasonable, but _necessary_ " has become a staple in science fiction.)


End file.
